State ex rel. Estate of Perry ex rel. Perry

• Court: Missouri Supreme Court
• Writing for the Court: Joseph M. Ellis
• Citation: State ex rel. Estate of Perry ex rel. Perry, 168 S.W.3d 577 (Mo. 2005)
• Decision Date: 30 August 2005
• Docket Number: No. WD 64654.,No. WD 64594.,WD 64594.,WD 64654.
• Parties: STATE of Missouri ex rel. ESTATE OF Marvin J. PERRY, by Paul E. PERRY, Relator. In the Estate of Marvin J. Perry, Deceased, Paul E. Perry, Appellant, v. The Honorable Ellen S. Roper, Circuit Judge, 13th Judicial Circuit, John S. Perry, and Allan L. Perry, Respondents.

168 S.W.3d 577

STATE of Missouri ex rel. ESTATE OF Marvin J. PERRY, by Paul E. PERRY, Relator In the Estate of Marvin J. Perry, Deceased, Paul E. Perry, Appellant, v. The Honorable Ellen S. Roper, Circuit Judge, 13th Judicial Circuit, John S. Perry, and Allan L. Perry, Respondents.

No. WD 64594.

No. WD 64654.

Missouri Court of Appeals, Western District.

May 24, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 28, 2005.

Application for Transfer Denied August 30, 2005.

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Paul A. Seigfried, Mexico, MO, for relator and appellant.

Scott O. Marshall, St. Louis, MO, for respondents.

Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and THOMAS H. NEWTON, Judge.

JOSEPH M. ELLIS, Judge.

Paul E. Perry filed a petition for writ of certiorari in this court, as well as an appeal, seeking review of an order of the Probate Division of the Circuit Court of Boone County denying his petition for presentment of the will of his deceased father and his application for letters testamentary. Our writ of certiorari issued, and the writ and the appeal were subsequently consolidated. For the following reasons, we now quash our writ of certiorari and on the appeal reverse and remand for further proceedings.

On July 25, 2003, Marvin J. Perry (the decedent) died. Subsequently, on September 9, 2004, Paul E. Perry (Perry), the decedent's son, sought to enter a self-proving will executed by the decedent into probate by filing a Petition for Presentment of Instrument and an Application for Letters Testamentary in the Probate Division of the Circuit Court of Boone County.¹ In both pleadings, Perry affirmatively pled that the statute of limitations applicable to presentment and to letters testamentary had been tolled by his active duty service in the military pursuant to 50 U.S.C. app. § 526 of the Servicemembers' Civil Relief Act, 50 U.S.C. app. § 501 et seq.² Perry averred that he had been serving on active duty in the U.S. Army from January 8, 2003, to July 13, 2004.

On September 10, 2004, the day after the petition and application were filed, the probate judge entered her order denying Perry's Petition and Application, stating: "Petition for Probate of Will and Application for Letters Testamentary are denied, the Court finding more than one year has passed since the date of death of decedent which occurred on July 25, 2003."

On September 23, 2004, Perry filed a Petition for Writ of Certiorari in this Court. On October 8, 2004, Perry filed his notice of appeal of the trial court's judgment. On October 14, 2004, this Court entered its Writ of Certiorari. On November 5, 2004, the trial court entered its Return of Writ of Certiorari, stating that the court lacked jurisdiction to admit or reject the will because it was presented for probate over a year after the death of the decedent. The parties then filed briefs on the matter. Subsequently, Perry filed a motion to consolidate the writ case with his direct appeal, and that motion was granted. Thus, both Perry's petition for writ of certiorari and his direct appeal are now before this Court.

We must first determine whether Perry's direct appeal is properly before this Court because, if it is, certiorari will not lie. "`The office of the common-law writ of certiorari . . . generally extends to the review of all questions of jurisdiction, power, and authority of the inferior tribunal to do the action complained of, and all questions of irregularity in the proceedings.'" State ex rel. Southwestern Bell Tel. v. Brown, 795 S.W.2d 385, 387-88 (Mo. banc 1990) (quoting 14 Am.Jur.2d, Certiorari § 2 (1964)). "The function of the writ is to bring that record before the issuing court for the purpose of determining whether the inferior tribunal acted outside its jurisdiction or otherwise illegally, in situations where no appeal or other available mode of review is afforded or where such other type of review is inadequate to meet the exigencies of the case." State ex rel Modern Fin. Co. v. Bledsoe, 426 S.W.2d 737, 740 (Mo.App. E.D.1968) (internal citations omitted and emphasis added). "`Certiorari is a remedy narrow in its scope and inflexible in its character. It is not a general utility tool in the legal workshop. It cannot be made to serve the purpose of an appeal or writ of error.'" State ex rel. Hill v. Davis, 488 S.W.2d 305, 308 (Mo.App. W.D.1972) (quoting State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 139 S.W.2d 958, 961 (1940)). Accordingly, "[c]ertiorari cannot be used as a substitute for appeal . . . and where the inferior tribunal has jurisdiction and its action can be reviewed by appeal. . ., certiorari will not lie." State ex rel. Palmer v. Elliff, 332 Mo. 229, 58 S.W.2d 283, 286 (1933).

With regard to appeals in probate matters, Section 472.160.1(14)³ provides that any aggrieved person may appeal to the appropriate appellate court an order, judgment, or decree of the probate division in all cases where there is a final order or judgment under the probate code "except orders admitting to or rejecting wills from probate." "This entitlement must be liberally construed, as the law favors the right to appeal." In re Estate of Clark, 83 S.W.3d 699, 702 (Mo.App. W.D.2002).

While conceding that the probate court's order was not an order admitting or rejecting a will from probate, Respondent contends that an order rejecting a petition for failing to comply with the time limitation set forth in § 473.050 is not a final order or judgment and is, therefore, not appealable. Respondent argues that it is instead a determination that the probate court lacked subject matter jurisdiction and that such rulings are not reviewable by this Court.⁴

"For an order to be final and appealable, it must dispose of all issues and parties in the case, leaving nothing for future determination." Id. at 702. The probate court's order meets these criteria.

In the case at bar, the probate court did not admit or reject the will from probate, and, therefore, the provision of § 472.160.1(14) barring appeals from "orders admitting to or rejecting wills from probate" is inapplicable. This is so because the probate court's dismissal of an application and refusal to admit a purported will to probate based upon the statute of limitations does not constitute a "rejection" of a will from probate as provided in § 472.160.1. See In re Politte's Estate, 460 S.W.2d 733, 734-35 (Mo.App. E.D.1970). Instead, the probate court dismissed Perry's petition and application for failing to comply with the applicable statute of limitations. Id. While Respondent contends that the statutory time limitations set forth by the legislature for the filing of a will and for applying for letters testamentary are not statutes of limitations, Section 473.050 is a statute of limitations, limiting the time within which a will can be presented for probate. Swinney v. Cummings, 581 S.W.2d 474, 476 (Mo.App. S.D.1979); In re Politte's Estate, 460 S.W.2d at 735. Likewise, the one-year limitation for filing an application for letters testamentary is a statute of limitations. Johnson v. Akers, 9 S.W.3d 608, 609 (Mo. banc 2000). Thus, the trial court disposed of all issues and parties before the court.

A trial court's dismissal of an action based upon the running of a statute of limitations is a final, appealable order. Long v. Cross Reporting Serv., Inc., 103 S.W.3d 249, 252 n. 4 (Mo.App. W.D.2003); Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo.App. E.D.2000). More specifically, as noted supra, a trial court's determination that an action is barred by the statute of limitations for filing a will or for applying for letters testamentary is reviewable by an appellate court. See In re Politte's Estate, 460 S.W.2d at 734-35; Johnson, 9 S.W.3d at 609-10 (reviewing the probate court's denial of an application for letters testamentary because the application was not filed within the one year statute of limitations).

Even were we to view the applicable statute of limitations as a jurisdictional prerequisite, the probate court had the authority to consider its own jurisdiction, and its ruling in that regard is reviewable by this Court on appeal. Where a trial court has dismissed a case on the ground that it lacked subject matter jurisdiction, the trial court's dismissal of the action is appealable because the effect of the order is to dismiss the plaintiff's action and not merely the pleading.⁵ Sexton v. Jenkins & Assocs., Inc., 152 S.W.3d 270, 273 (Mo. banc 2004).

In short, the trial court's order dismissing Perry's petition and application was a final, appealable order, properly before this Court on appeal. Accordingly, certiorari does not lie. We, therefore, quash our writ of certiorari and take up Perry's direct appeal.

On appeal, Perry contends that the probate court erred in dismissing his petition and application for failing to comply with the applicable statute of limitations. Perry claims that 50 App. U.S.C. § 526(a) of the Servicemembers' Civil Relief Act (SCRA) tolled the statute of limitations while he was actively serving in the military.

Where a dismissal is granted on the pleadings on the grounds that a claim is barred by a statute of limitations, this Court will review the matter as an issue of law. Bettis v. Potosi R-III Sch. Dist., 51 S.W.3d 183, 185 (Mo.App. W.D.2001). The pleadings are "construed liberally, treating all facts alleged as true and construing allegations favorably to the plaintiff." Dupree v. Zenith Goldline Pharms., Inc., 63 S.W.3d 220, 221 (Mo. banc 2002). A petition may not be properly dismissed for violating the statute of limitations "unless it is clearly established on the petition's face and without exception that the cause of action is time barred." Braun v. Petty, 31 S.W.3d 521, 523 (Mo.App. E.D.2000).

Perry's pleadings affirmatively averred that he had served on active duty in the...